{ "id": 77157, "name": "BOARD OF COMMISSIONERS OF DO\u00d1A ANA COUNTY, Petitioner-Appellant, v. LAS CRUCES SUN-NEWS, Respondent-Appellee", "name_abbreviation": "Board of Commissioners v. Las Cruces Sun-News", "decision_date": "2003-06-11", "docket_number": "No. 22,644", "first_page": "283", "last_page": "294", "citations": [ { "type": "official", "cite": "134 N.M. 283" }, { "type": "parallel", "cite": "76 P.3d 36" }, { "type": "parallel", "cite": "2003-NMCA-102" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "90 N.M. 790", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2868698 ], "weight": 30, "year": 1977, "pin_cites": [ { "page": "797" }, { "page": "1243" }, { "page": "796, 798" }, { "page": "1242, 1244" }, { "page": "797-98" }, { "page": "1243-44" }, { "page": "796" }, { "page": "1242" }, { "page": "796, 798" }, { "page": "1242, 1244" }, { "page": "797-98" }, { "page": "1243-44" }, { "page": "796" }, { "page": "1242" }, { "page": "796" }, { "page": "1242" }, { "page": "798" }, { "page": "1244" }, { "page": "797" }, { "page": "1243" }, { "page": "797" }, { "page": "1243" }, { "page": "797-98" }, { "page": "1243-44" }, { "page": "795" }, { "page": "1241", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotations and citation omitted" }, { "page": "796, 798" }, { "page": "1242, 1244" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0790-01" ] }, { "cite": "106 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708768 ], "weight": 2, "pin_cites": [ { "page": "496" }, { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0492-01" ] }, { "cite": "98 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582516 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "267", "parenthetical": "good cause not established by generalized statement that pubhshing picture of defendant in court would prejudice his right to a fair trial" }, { "page": "306", "parenthetical": "good cause not established by generalized statement that pubhshing picture of defendant in court would prejudice his right to a fair trial" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0261-01" ] }, { "cite": "1999-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827403 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0788-01" ] }, { "cite": "1999-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257791 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 51" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0151-01" ] }, { "cite": "115 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725504 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "21" }, { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0006-01" ] }, { "cite": "2000-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217139 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0806-01" ] }, { "cite": "1998-NMCA-119", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834215 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/125/0597-01" ] }, { "cite": "117 N.M. 181", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552645 ], "weight": 4, "pin_cites": [ { "page": "184" }, { "page": "146" }, { "page": "184" }, { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0181-01" ] }, { "cite": "1999-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257701 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0240-01" ] }, { "cite": "2002-NMCA-068", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260693 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0372-01" ] }, { "cite": "121 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566662 ], "weight": 2, "pin_cites": [ { "page": "769" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0764-01" ] }, { "cite": "1996-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "103 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711367 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "76" }, { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0072-01" ] }, { "cite": "1998-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834209 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0401-01" ] }, { "cite": "107 N.M. 402", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597248 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "404" }, { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0402-01" ] }, { "cite": "2001-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352318 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0573-01" ] }, { "cite": "1998-NMSC-025", "category": 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"\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0842-01" ] }, { "cite": "1998-NMCA-071", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834369 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0228-01" ] }, { "cite": "122 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322316 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/122/0307-01" ] }, { "cite": "1996-NMCA-094", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 13" }, { "page": "\u00b6 17" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1338, "char_count": 32339, "ocr_confidence": 0.664, "pagerank": { "raw": 2.2837349001636455e-07, "percentile": 0.7854620095611752 }, "sha256": "e04e322111deedaaa41d8b0bbaf77e0aba7c78aec60bb3c0ce68bae2d89b4297", "simhash": "1:37a55e223f9a8b6e", "word_count": 5223 }, "last_updated": "2023-07-14T16:41:45.272947+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JAMES J. WECHSLER, Chief Judge, and IRA ROBINSON, Judge." ], "parties": [ "BOARD OF COMMISSIONERS OF DO\u00d1A ANA COUNTY, Petitioner-Appellant, v. LAS CRUCES SUN-NEWS, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} The Board of Commissioners of Do\u00f1a Ana County (the County) refused to promptly disclose certain public records requested by the Las Cruces Sun-News (the Newspaper) pursuant to the Inspection of Public Records Act, NMSA 1978, \u00a7\u00a7 14-2-1 to -12 (1999, prior to 2001 amendment) (IPRA). The district court ruled in favor of the Newspaper and ordered the County to pay attorney fees pursuant to Section 14-2-12(D). Three issues are pi\u2019esented: (1) whether it was error to deny the County\u2019s motion for protective order, (2) whether the public interests in protecting related criminal and civil proceedings from prejudice outweigh the public interest in the immediate release of information regarding them status, and (3) whether an award of attorney fees was proper under the circumstances. We affirm.\nBACKGROUND\n{2} In September 1999 the Newspaper made a written request under IPRA for a copy of a settlement agreement between the County and former Do\u00f1a Ana County Detention Center inmate Claudia Moreno, including its terms and amounts, as well as any documents reflecting the attorney fees incurred by the County during the course of negotiations. Moreno\u2019s civil claims were based on allegations of criminal sexual acts by two former county detention officers. In a second letter, the Newspaper expanded its request to include \u201cany and all documents related to settlements the County of Do\u00f1a Ana has reached on behalf of the Do\u00f1a Ana County Detention Center.\u201d\n{3} In a letter response to these requests, the County acknowledged it was undoubtedly required to release the documents, but claimed a temporary exemption from disclosure under the Risk Management Division (RMD) confidentiality provision, NMSA 1978, \u00a7 15-7-9(A)(2) (1981), an exception incorporated through a provision in IPRA exempting confidential documents \u201cas otherwise provided by law.\u201d Section 14-2-l(A)(8). The County also cited the countervailing public interests exception recognized in State ex rel. Newsome v. Alarid, 90 N.M. 790, 797, 568 P.2d 1236, 1243 (1977), claiming the public interest in protecting public funds by providing a zealous defense, and the public interest in having proceedings free from undue prejudice, tipped the balance in favor of nondisclosure until all related litigation was resolved.\n{4} At the time the Petition was filed, there were three civil lawsuits pending by former inmates of the Do\u00f1a Ana County Detention Center who alleged they had been sexually assaulted by county detention officers while they were incarcerated at the facility. Two additional civil claims had settled, and there were criminal charges pending against six detention officers based on these same allegations. Perhaps anticipating additional requests would be forthcoming because of similar tort claims notices and correspondence threatening litigation it received, the County filed a Petition for Declaratory Decree that \u201cthe counterveiling [sic] public policy exception to [IPRA justified] a delay\u201d in disclosing the settlement records to Newspaper, \u201cuntil all related civil claims and criminal proceedings [were] resolved.\u201d The Newspaper counterclaimed that the denial of its request constituted a violation of IPRA and asked the district court to order the County to disclose the records and award it attorney fees.\n{5} Several months after filing the Petition, the County filed a motion for protective order, followed by a motion for summary judgment. Both motions were denied and the district court issued a \u201cfinal order\u201d holding that the denial of the County\u2019s motion for summary judgment was dispositive of the Newspaper\u2019s counterclaim for violation of IPRA and awarded the Newspaper attorney fees in the amount of $3353. We remanded the case to district court so it could clarify the final order. The district court entered an Amended Final Order on February 4, 2003, ordering the County to produce the Moreno settlement agreement and any other settlement documents, in related cases, which the Newspaper might request.\nI. MOTION FOR PROTECTIVE ORDER\n{6} The County sought a protective order to seal the district court record of the summary judgment proceedings and to maintain the information disclosed during the hearing confidential. The County pursued this avenue in lieu of the in camera review contemplated by Newsome. 90 N.M. at 796, 798, 568 P.2d at 1242, 1244. The motion asked that the summary judgment hearing also be closed to the public. We assume the reason for this tack was to allow the parties to argue, and the district court to consider, all of the relevant facts at the summary judgment hearing without making that information public at the hearing.\n{7} Rule 1-026(C) NMRA 2003 \u201cpermits the district court \u2018for good cause shown\u2019 to issue a protective order \u2018which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.\u2019 \u201d John Does I through III v. Roman Catholic Church of the Archdiocese, Inc., 1996-NMCA-094, \u00b6 13, 122 N.M. 307, 924 P.2d 273. The movant bears the burden to show that \u201cdisclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity.\u201d Krahling v. Executive Life Ins. Co., 1998-NMCA-071, \u00b6 15, 125 N.M. 228, 959 P.2d 562 (internal quotation marks and citations omitted). In short, good cause \u201cmust be based on a factual determination of potential harm, not on conclusory statements.\u201d Id. \u00b6 10, 959 P.2d 562. In determining whether good cause has been shown, courts balance \u201cthe party\u2019s need for information against the injury that might result if uncontrolled disclosure is compelled.\u201d Id. \u00b6 15, 959 P.2d 562.\n{8} The district court is given broad discretion in determining whether good cause has been shown and reversal is permitted only for an abuse of discretion. John Does I through III, 1996-NMCA-094, \u00b6 13, 122 N.M. 307, 924 P.2d 273. \u201cAn abuse of discretion occurs if the decision is against the logic and effect of the facts and circumstances of the case.\u201d Bustos v. Bustos, 2000-NMCA-040, \u00b6 24, 128 N.M. 842, 999 P.2d 1074.\n{9} The County argues that the district court needed to consider the nature of the requested information in order to decide whether it could appropriately decide if it could delay disclosure without sanctions. The County provided information as to the number of civil litigants, the alleged perpetrators, the dates, conduct, and nature and extent of injuries alleged, and whether the civil claims had been resolved. The County declined to disclose the details of the then completed settlements to the district court, unless the court first issued a protective order.\n{10} As an initial matter, we note there is no order denying the motion for protective order in the record and transcripts of the hearing on the motion were not submitted for our review. We assume, therefore, the district court considered all of the facts provided to it in the County\u2019s motions. Reeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct.App.1988) (\u201cUpon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the trial court\u2019s decision, and the appellate court will indulge in reasonable presumptions in support of the [ruling].\u201d). As for the settlement agreements, the County cannot now protest that the district court did not consider the material when it refused to provide this same material absent a protective order rather than submit it for in camera review as required by Newsome.\n{11} The Supreme Court has set forth specific procedures to be followed when an exception to IPRA is invoked. Newsome, 90 N.M. at 797-98, 568 P.2d at 1243-44. Each inquiry starts with the presumption that public policy favors the right of inspection. Id. at 796, 568 P.2d at 1242. To overcome this presumption, a public entity seeking to withhold public records bears the burden of proving why their disclosure would be prejudicial to the public interest. Id. at 796, 798, 568 P.2d at 1242, 1244. In assessing the competing public interests, Newsome directs courts to apply the \u201crule of reason\u201d to each case \u201cto determine whether the explanation of the custodian is reasonable and to weigh the benefits to be derived from non-disclosure against the harm which may result if the records are not made available.\u201d Id. at 797-98, 568 P.2d at 1243-44. To do so, the trial judge must review the materials-preferably in camera-to make an informed decision as to whether the justification for non-disclosure is reasonable. Id. at 796, 568 P.2d at 1242. Once the district court has conducted its review, the records are placed under seal of the court and held by the clerk of the court until further order of the district court or appellate court. Id. As always, it is the appellant\u2019s task to designate the sealed records for review by this Court. See Williams v. Bd. of County Comm\u2019rs, 1998-NMCA-090, \u00b6 10, 125 N.M. 445, 963 P.2d 522 (appellant has responsibility to provide adequate record for appellate court\u2019s review).\n{12} The County sought to circumvent this procedure by filing a motion for protective order, asserting to the district court that it could only consider the settlement records if the motion for protective order was granted. The basis for this deviation from established procedure apparently was that the County was only seeking to delay disclosure-albeit indefinitely-rather than permanently deny access to the records. We are at a loss as to why the County would not submit the records to the district court for confidential review. To balance the interests involved, in camera review is most efficient, if not imperative. \u201c \u2018In no other way can such questions be determined.\u2019 \u201d Newsome, 90 N.M. at 796, 568 P.2d at 1242 (quoting Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893, 896-97 (1952)). The County\u2019s decision to bypass established procedure effectively obstructed full review by the district court and this Court. See Newsome, 90 N.M. at 798, 568 P.2d at 1244.\n{13} We hold that the district court did not abuse its discretion in denying the County\u2019s motion for protective order. The proper procedure was for the County to submit the settlement documents for an in camera review in order for the district court to rule on the motion for summary judgment.\n{14} Having affirmed the district court\u2019s denial of the motion for protective order under Rule 1-026, we do not reach the First Amendment issues argued by the parties regarding prior restraint of the media and public from the court proceedings. The motion was denied and an open hearing was held. See Srader v. Verant, 1998-NMSC-025, \u00b6 40, 125 N.M. 521, 964 P.2d 82 (reviewing court will not determine academic or moot questions).\nII. MOTION FOR SUMMARY JUDGMENT\n{15} The district court denied the County\u2019s motion for summary judgment, finding that \u201cany countervailing public interest in the delay of the release of information about a settlement ... [did] not outweigh the public interest in prompt disclosure.\u201d The district court ordered the County to release the requested settlement agreement and any related documents, and to comply with future requests from the Newspaper in related cases. Where there are no material facts in dispute on an appeal from a motion for summary judgment, this Court reviews the district court\u2019s legal determination de novo. Gordon v. Sandoval County Assessor, 2001-NMCA-044, \u00b6 12, 130 N.M. 573, 28 P.3d 1114.\n{16} We begin our analysis by emphasizing that every \u201ccitizen has a fundamental right to have access to public records.\u201d Newsome, 90 N.M. at 797, 568 P.2d at 1243. IPRA allows only a few exceptions:\nA. Every person has a right to inspect any public records of this state except:\n(1) records pertaining to physical or mental examinations and medical treatment of persons confined to any institution;\n(2) letters of reference concerning employment, licensing or permits;\n(3) letters or memorandums which are matters of opinion in personnel files or students\u2019 cumulative files;\n(4) law enforcement records that reveal confidential sources, methods, information or individuals accused but not charged with a crime. Law enforcement records include evidence in any form received or compiled in connection with any criminal investigation or prosecution by any law enforcement or prosecuting agency, including inactive matters or closed investigations to the extent that they contain the information listed above;\n(5) as provided by the Confidential Materials Act [14-3A-1, 14-3A-2 NMSA 1978];\n(6) trade secrets, attorney-client privileged information and long-range or strategic business plans of public hospitals discussed in a properly closed meeting;\n(7) public records containing the identity of or identifying information relating to an applicant or nominee for the position of president of a public institution of higher education; and\n(8) as otherwise provided by law.\nSection 14-2-l(A). According to our Supreme Court the right to freely inspect public records is limited only by \u201ccontrary statute or countervailing public policy.\u201d Newsome, 90 N.M. at 797, 568 P.2d at 1243.\n{17} The County argues for three exceptions under subsection (A)(8) \u201cas otherwise provided by law,\u201d citing (1) Section 15-7-9(A)(2), the Risk Management Division confidentiality provision; (2) NMSA 1978, \u00a7 10-15-1(H)(7) (1999) providing exceptions to the Open Meetings Act; and (3) countervailing public interests as recognized under Newsome, 90 N.M. at 797-98, 568 P.2d at 1243-44. We discuss each argument separately. For the sake of clarity, we note that- the countervailing public policy, or \u201crule of reason\u201d as it is often referred to, is a non-statutory confidentiality exception. Spadaro v. Univ. of N.M. Bd. of Regents, 107 N.M. 402, 404, 759 P.2d 189, 191 (1988).\nA. Section 15-7-9(A)(2)\n{18} Section 15-7-9(A)(2) makes confidential, on threat of criminal conviction, certain records held by RMD. The confidentiality provision reads:\nA. The following records created or maintained by the risk management division are confidential and shall not be subject to any right of inspection by any person not a state officer, member of the legislature or state employee within the scope of his official duties:\n(2) records pertaining to claims for damages or other relief against any governmental entity or public officer or employee; provided such records shall be subject to public inspection by New Mexico citizens one hundred eighty days after the latest of the following dates:\n(a) the date all statutes of limitation applicable to the claim have run;\n(b) the date all litigation involving the claim and the occurrence giving rise thereto has been brought to final judgment and all appeals and rights to appeal have been exhausted;\n(c) the date the claim is fully and finally settled; or\n(d) the date the claim has been placed on closed status.\n(Emphasis added). Although RMD has not insured the County for the past eleven years, the County urges us to construe Section 15-7-9(A)(2) to encompass all public bodies, not just those insured by RMD, despite the clear, unambiguous language limiting confidentiality to \u201crecords created or maintained by the risk management division.\u201d We decline to do so.\n{19} This Court reviews questions of statutory interpretation de novo. Gordon, 2001-NMCA-044, \u00b6 12, 130 N.M. 573, 28 P.3d 1114. Our primary goal in interpreting statutes is to ascertain legislative intent. Regents of the Univ. of N.M. v. N.M. Fed\u2019n of Teachers, 1998-NMSC-020, \u00b6 28, 125 N.M. 401, 962 P.2d 1236. The primary indicator of legislative intent is the statute\u2019s plain language. Gen. Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 76, 703 P.2d 169, 173 (1985). Where the statute\u2019s language is clear and unambiguous, we give the statute its plain and ordinary meaning and refrain from further interpretation. Id.; Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M. 764, 769, 918 P.2d 350, 355.\n{20} Prior to 1989, insurance coverage through RMD was mandatory for public entities under the Torts Claim Act (TCA), NMSA 1978, \u00a7\u00a7 41-4-1 to -29 (1976, as amended through 2001). See 1977 N.M. Laws, ch. 386, \u00a7 19; 1978 N.M. Laws, ch. 166, \u00a7 5; 1979 N.M. Laws, ch. 10, \u00a7 1; 1983 N.M. Laws, ch. 301, \u00a7 76; 1986 N.M. Laws, ch. 27, \u00a7 1 and ch. 102, \u00a7 9; 1988 N.M. Laws, ch. 57, \u00a7 1. The TCA was amended in 1989, eight years after the confidentiality provision of Section 15-7-9 was enacted, to allow public entities to obtain coverage from sources other than RMD. Section 41-4r-25(C). Section 15-7-9, however, has not been amended to extend confidentiality to records held by public bodies that choose coverage from sources other than RMD. The County argues it would be unreasonable not to extend Section 15-7-9(A)(2) to counties who chose to obtain coverage from other sources, merely because the Legislature \u201cforgot\u201d to amend the statute after it amended the TCA.\n{21} We cannot disregard the plain language of Section 15-7-9 which makes confidential only those \u201crecords created or maintained by the risk management division.\u201d There is nothing in the statute to suggest the confidentiality provision of Section 15-7-9 relates to records held by any other insurer. Moreover, it becomes apparent, when one reads the statute as a whole, that the sole purpose of Section 15-7-9 was to establish the risk management division. Everything in the statute is tailored to this purpose: Article 7 is entitled \u201cRisk Management Division,\u201d and the sections contained therein describe the establishment of the division and an advisory board, as well as their duties, powers, and management of public liability funds. In the context of this particular statute then, public entities are merely \u201cclients\u201d of RMD. While public bodies insured by RMD indirectly benefit from the confidentiality provision, the language of the statute and context of the provision indicate the benefit is conferred primarily to RMD, as the insurer, and only incidentally to its insureds.\n{22} Nothing in the TCA changes the analysis. Under the TCA, it is \u201cthe duty of governmental entities to cover every risk for which immunity has been waived under the [Act].\u201d Section 41-4-20(A). Counties which are insured by RMD contribute money to the public liability fund, which RMD is then authorized to expend to respond to tort liability claims. Section 41-4-23(A), (B); Section 41-4-25(A). When a public entity chooses commercial insurance coverage, it does not contribute to the public fund. Nothing in the TCA suggests the Legislature intended to extend the protection of Section 15-7-9 to funds held by private insurers. See \u00a7 41-4-25(C).\n{23} Finally, we cannot say the Legislature \u201cforgot\u201d to reassess Section 15-7-9 after amending the TCA to give public entities a choice between insurers. \u201cThe Legislature is presumed to know existing statutory law and to take that law into consideration when enacting new law.\u201d Gutierrez v. West Las Vegas Sch. Dist., 2002-NMCA-068, \u00b6 15, 132 N.M. 372, 48 P.3d 761. \u201cThe decision to extend the scope of an existing statute ... is a matter for the Legislature, and absent an amendment to [Section 15-7-9], we presume that the Legislature continues to intend that the statute apply according to its original meaning.\u201d State v. Cleve, 1999-NMSC-017, \u00b6 15, 127 N.M. 240, 980 P.2d 23. Accordingly, we hold Section 15-7-9 does not prevent disclosure of the requested settlement documents under Section 14-2-l(A)(8), \u201cas otherwise provided by law.\u201d\nB. Section 10-15-KH)\n{24} In New Mexico, the Open Meetings Act protects attorney-client confidentiality by authorizing \u201cclosed session\u201d meetings \u201cpertaining to threatened or pending litigation in which the public body is or may become a participant.\u201d Section 10-15-1(H)(7); see Bd. of County Comm\u2019rs v. Ogden, 117 N.M. 181, 184, 870 P.2d 143, 146 (Ct.App.1994).\n{25} The attorney-client privilege applies to \u201cconfidential communications made for the purpose of facilitating the rendition of professional legal services to the client.\u201d Rule 11-503(B) NMRA 2003. Section 10-15-1(H) incorporates the privilege by protecting confidential communications between attorneys and their public agency clients. See Ogden, 117 N.M. at 184, 870 P.2d at 146. However, settlement agreements entered into between parties are outside the privilege. As such, even the County admits the settlement agreements are public record.\n{26} Although the Newspaper\u2019s general request for \u201cany and all documents related to settlement agreements the County of Do\u00f1a Ana has reached on behalf of the Do\u00f1a Ana County Detention Center\u201d might reach privileged material, the County has not made that argument and has not identified any materials that might be privileged. The County\u2019s Section 10-15-1(H) argument is utterly without merit.\nC. Countervailing Public Policies\n{27} The County raises two countervailing public policies: (1) the public interest in protecting public funds, and (2) the public interest in obtaining a fair trial. According to the County, disclosure of settlement records would diminish its ability to protect public funds by (1) creating an external incentive for others to assert claims and allege it had actual notice of such claims, (2) interfering with its ability to negotiate fair and reasonable settlements by causing claimants to look beyond the facts of underlying claims to other settlement awards, and (3) impeding the County\u2019s right to a fair trial because of pretrial publicity. The County also maintains that pretrial publicity of the information contained in the settlement documents would prejudice the criminal defendants\u2019 right to a fair trial.\n{28} The trial court ruled countervailing interests did not outweigh public access, and we agree.\nPublic Interest in Protecting Public Funds\n{29} The interest in protecting public funds does not outweigh the public interest in accessing public records under the circumstances of this case. In essence, the County seeks to keep information from the public on the fear that the information could be used against it to engender phantom claims or to interfere in possible settlements. Nothing in the record indicates these fears are anything more than rank speculation. Even if they were grounded in some fact, however, the County\u2019s position overlooks the core purposes of IPRA to provide access to public information and thereby encourage accountability in public officials and employees. \u201cPublic business is the public\u2019s business.\u201d Newsome, 90 N.M. at 795, 568 P.2d at 1241 (internal quotation marks and citation omitted). People have a right to know that the people they entrust \u201cwith the affairs of government are honestly, faithfully and competently performing their function as public servants.\u201d Id. (internal quotations and citation omitted). Further, IPRA does not limit how the information might be used.\n{30} The County\u2019s concerns are misplaced. \u201c[W]hen a member of the public has been wronged by some action or inaction of a government agent, the government\u2019s proper goal coincides with that of the injured citizen in uncovering and correcting the wrong[,]\u201d not the narrower interest in prevailing in a lawsuit. State ex rel. Children, Youth & Families Dep\u2019t v. George F., 1998-NMCA-119, \u00b6 17 n. 1, 125 N.M. 597, 964 P.2d 158 (internal quotation marks and citation omitted). Accordingly, we hold that the public interest in protecting public funds under the facts of this case does not outweigh the right to inspect public records.\nPublic Interest in Obtaining a Fair Trial\n{31} There are three layers to the County\u2019s assertion that the right to a fair trial outweighs the right to access public records, they are: (1) the County will be prejudiced in the remaining civil cases, (2) the public has an interest in criminal trials free from undue prejudice, and (3) defendant\u2019s right to a fair trial.\n{32} Pretrial publicity does not automatically deprive a party of a fair trial; it does not establish actual prejudice or create a presumption of prejudice. State v. Lasner, 2000-NMSC-038, \u00b6 26, 129 N.M. 806, 14 P.3d 1282; State v. Hernandez, 115 N.M. 6, 21, 846 P.2d 312, 327 (1993); see State v. House, 1999-NMSC-014, \u00b6 51, 127 N.M. 151, 978 P.2d 967. Like any other party, the County as a party must show by clear and convincing evidence that there is a reasonable probability a fair and impartial trial cannot be had if the information is disclosed. See id. \u00b6\u00b6 41-44, 978 P.2d 967. The County failed to meet this burden in the civil cases. The record is devoid of any information regarding the nature, extent or timing of existing publicity, the nature of the community, or any other information that would assist in assessing the County\u2019s general claim of prejudice. The naked assertion that the fair trial rights of the County in related civil proceedings will be prejudiced is insufficient as a matter of law to establish prejudice to the public interest sufficient to delay disclosure. Newsome, 90 N.M. at 796, 798, 568 P.2d at 1242, 1244.\n{33} The right to a fair trial in criminal proceedings is a right that is conferred upon defendants under the Sixth and Fourteenth Amendments of the Federal Constitution and N.M. Const, art. II, \u00a7 7. Generally, this right is created for the benefit of, and is personal to, the defendant. In this case, it is the County, not defendants in the related criminal proceedings, which is asserting the right. To establish standing to assert an interest of a third-party, New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, \u00b6 13, 126 N.M. 788, 975 P.2d 841 (emphasis added) (citation omitted). An injury in fact is \u201can invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.\u201d John Does I through III, 1996-NMCA-094, \u00b6 17, 122 N.M. 307, 924 P.2d 273 (internal quotations and citation omitted). The County presented no evidence that the harm to it or the individual defendants in the criminal proceedings is anything more than speculation. Absent a factual basis for the alleged injury, the asserted interests in a fair criminal trial are nothing more than \u201cgeneralized statements ... [that] are neither substantial nor persuasive.\u201d See State ex rel. N.M. Press Ass\u2019n v. Kaufman, 98 N.M. 261, 267, 648 P.2d 300, 306 (1982) (good cause not established by generalized statement that pubhshing picture of defendant in court would prejudice his right to a fair trial).\n[t]he litigant must have suffered an \u2018injury in fact,\u2019 thus giving him or her a \u2018sufficiently concrete interest\u2019 in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party\u2019s ability to protect his or her own interests.\n{34} Moreover, the County has not shown why the individual defendants could not protect their own interests, or even if they were ever made aware of the Petition filed by the County. Defendants could have asserted their right under Rule 1-024(A)(2) NMRA 2003, as well as through traditional safeguards that protect these interests, such as voir dire, motion for change of venue, or jury sequestration. There is no explanation provided why these alternatives were unavailable to defendants or otherwise inadequate. Accordingly, we find that the County lacked standing to assert a public interest in defendant\u2019s right to a fair trial.\nIII. ATTORNEY FEES\n{35} The district court awarded the Newspaper attorney fees pursuant to Section 14-2-12(D) which provides: \u201c[t]he court shall award damages, costs and reasonable attorneys\u2019 fees to any person whose written request has been denied and is successful in a court action to enforce the provisions of the Inspection of Public Records Act.\u201d The district court found the filing of the Petition for Declaratory Judgment was unreasonable and therefore constituted an unlawful denial under IPRA, and the Newspaper prevailed on its counterclaim. The County argues the Newspaper is not entitled to attorney fees because (1) it brought its action under the Declaratory Judgment Act, NMSA 1978, \u00a7\u00a7 44-6-1 to -15 (1975), which does not provide for attorney fees; (2) denial of fees is consistent with Section 14-2-9(B)(4) which prohibits the custodian of records from charging a fee for determining whether the material is subject to disclosure; (3) the request was equivalent to a finding that it was \u201cexcessively burdensome\u201d given the lack of legal precedent, Section 14-2-10; and (4) the filing of the Petition was not a \u201cdenial\u201d but merely a \u201cdelay\u201d until all claims were resolved.\n{36} The IPRA is the controlling statute in this case, not the Declaratory Judgment Act. Although the County brought an action for declaratory judgment, the Newspaper filed a counterclaim under IPRA. The court found that the Newspaper prevailed under IPRA which provides for attorney fees. See Section 14-2-12(D).\n{37} Under IPRA\u2019s \u201cenforcement\u201d provision, an award of attorney fees is mandatory when (1) the request has been denied, and (2) the requester is successful in a court action to enforce the Act. The County seeks to avoid the mandatory language by arguing the Petition was not a \u201cdenial\u201d but merely a reasonable \u201cdelay\u201d under the circumstances. We disagree. Under the plain language of the \u201cenforcement\u201d provision there is no such distinction. It is clear the Legislature intended to enforce disclosure by imposing a cost-including attorney fees-for nondisclosure within the time frames set by IPRA.\n{38} Reading other provisions of IPRA, we find that \u201cdelay\u201d is addressed only in Section 14-2-ll(A), which provides that:\nA. Unless a written request has been determined to be excessively burdensome or broad, a written request for inspection of public records that has not been permitted within fifteen days of receipt by the office of the custodian may be deemed denied. The person requesting the public records may pursue the remedies provided in the [Act].\nAnd Section 14-2-10 which describes the procedure for excessively burdensome requests:\n\u201cIf a custodian determines that a written request is excessively burdensome or broad, an additional reasonable period of time shall be allowed to comply with the request. The custodian shall provide written notification to the requester within fifteen days of receipt of the request that additional time will be needed to respond to the written request. The requester may deem the request denied and may pursue the remedies available pursuant to the [Act] if the custodian does not permit the records to be inspected in a reasonable period of time.\u201d\nIn other words, a \u201cdelay\u201d is not deemed a denial if the materials are produced within fifteen days or \u201cwithin a reasonable time\u201d if the request is an excessive burden on the agency and notice to this effect is given the requester.\n{39} The record does not contain any indication that the County provided written notification to the Newspaper requesting additional time because the request was unreasonably burdensome or broad. And the County does not assert to us that it provided written notification requesting additional time.\n{40} The County does seem to argue, for the first time on appeal, that the filing of the Petition was akin to an excessive burden request, in light of the countervailing public interests and absence of any legal authority on the matter. The County did not make this argument to the district court, and we decline to address the issue in this posture. Woolwine v. Furr\u2019s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct.App.1987) (holding appellate court will not consider argument not presented to court below unless it is jurisdictional).\nIV. CONCLUSION\n{41} We affirm the district court\u2019s decision that the County\u2019s denial of the requested materials was unreasonable and a violation of IPRA. We, thus, also affirm the award of attorney fees.\n{42} IT IS SO ORDERED.\nWE CONCUR: JAMES J. WECHSLER, Chief Judge, and IRA ROBINSON, Judge.", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Lisa L. Warren, County Attorney, Karen E. Wootton, Senior Assistant County Attorney, Las Cruces, NM, for Appellant.", "Martin R. Esquivel, Dines, Gross & Esquivel, P.C., Albuquerque, NM, for Appellee." ], "corrections": "", "head_matter": "2003-NMCA-102\n76 P.3d 36\nBOARD OF COMMISSIONERS OF DO\u00d1A ANA COUNTY, Petitioner-Appellant, v. LAS CRUCES SUN-NEWS, Respondent-Appellee.\nNo. 22,644.\nCourt of Appeals of New Mexico.\nJune 11, 2003.\nLisa L. Warren, County Attorney, Karen E. Wootton, Senior Assistant County Attorney, Las Cruces, NM, for Appellant.\nMartin R. Esquivel, Dines, Gross & Esquivel, P.C., Albuquerque, NM, for Appellee." }, "file_name": "0283-01", "first_page_order": 313, "last_page_order": 324 }